Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
ATLANTIC MUTUAL INSURANCE COMPANY, Plaintiff–Appellant, v. M.H. KANE CONSTRUCTION CORP., et al., Defendants–Respondents.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 24, 2011, which granted defendants' motion to change venue from New York County to Suffolk County pursuant to CPLR 510(3), unanimously reversed, on the law, without costs, and the motion denied.
Defendants' initial moving papers provided the names, addresses and occupations of four prospective nonparty witnesses in Suffolk County, but failed to make the requisite showing that those witnesses were actually contacted and were willing to testify, or to set forth the substance and materiality of their testimony (see Berk v. Linnehan, 85 AD3d 475 [1st Dept 2011] ). Nor did defendants provide any reason why traveling to New York County would constitute a hardship for those witnesses (see Hernandez v. Rodriguez, 5 AD3d 269, 270 [1st Dept 2004]; Gluck v. Pond House Farm, 271 A.D.2d 334, 334–35 [1st Dept 2000] ).
Defendants' attempt to cure these deficiencies in their reply papers was improper (see Root v. Brotmann, 41 AD3d 247 [1st Dept 2007] ). In any event, defendants failed to demonstrate that the proposed testimony of the nonparty witnesses, concerning defendants' claim that the County of Suffolk wrongfully declared defendant M.H. Kane Construction Corp. in default under a construction contract, would be material in the instant case in which plaintiff, a surety on performance bonds issued in connection with the construction project, seeks to recover pursuant to an indemnity agreement executed by defendants (see BIB Constr. Co. v. Fireman's Ins. Co. of Newark, N.J., 214 A.D.2d 521 [1st Dept 1995] ).
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: November 27, 2012
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)